Wholesale Services

Cloud Services - Terms of Service


Effective as of September 1, 2013.


READ THESE TERMS OF SERVICE CAREFULLY.

LinkBermuda Ltd. (“Company”, “We”, “Our” or “Us”) is willing to provide Link Cloud Services to you (collectively, “You”, “Your”, or “Customer”) only if You accept all of the following terms and conditions:

  • if You elect to use Link’s IaaS Cloud Services and either of Our associated Cloud Access Services (either Cloud Internet or Cloud Connect), the service terms and conditions posted at http://www.LinkBermuda.com/IaaSSLAUA.aspx (“IaaS Cloud Service Terms of Use Addendum”);
  • as well as any operating rules, polices, price schedules and other supplemental documents published by LinkBermuda from time to time, all of which are incorporated herein by reference,

collectively, the “Terms of Service” or “TOS”.

 

1.      Link Cloud Services

Link Cloud Services means those IaaS (Infrastructure as a Service), BaaS (Backup as a Service) and other Cloud services together with associated products and services that LinkBermuda and its affiliates make available to You (collectively, “Services” or “Link Cloud Services”) for a fee pursuant to this TOS.  Link Cloud Services do not include Third Party Software and Services, which is defined below.  We may make available to You the Link Cloud Services on a trial basis free of charge for a predetermined amount of time or in a limited capacity in order for You to evaluate Our Services. 

 

2.      Acceptance of Terms of Service

By registering to use Link Cloud Services, and each time You use a Link Cloud Service, You assent to and affirm Your acceptance of these Terms of Service and agree to comply with them now and throughout the period of Your use of the Services (“TOS Acceptance”).  If You do not agree to these Terms of Service in their entirety do not use Link Cloud Services.  You agree that We may modify the Terms of Service at any time by posting a revised version of these TOS on the LinkBermuda Website at http://www.LinkBermuda.com/CloudTOS.aspx.  The revised Terms of Service shall be effective as follows:

(A)     if the revised TOS are (i) for any Services which We are adding at the time of the revision, (ii) for the Privacy Policy, or (iii) for the AUP, then such TOS shall be effective upon posting (unless We expressly state otherwise at the time of posting); and

(B)     if the revised TOS are for any then-existing Services, then such TOS shall be effective thirty (30) days after posting.

By continuing to use or receive the Services after the effective date of any revisions to this TOS, You agree to be bound by the revised TOS.  It is Your responsibility to check the LinkBermuda Website pages regularly for changes to this TOS.

 

3.     Link Cloud Service Term, Termination and Suspension.

3.1     Service Term.  The Service term will commence upon TOS Acceptance and will continue until the applicable Service is terminated by You or Us pursuant to this TOS (“Term”). 

3.2     Termination.  Your Link Cloud Service termination rights are set forth in the applicable Service addendum. 

3.3   Termination or Suspension by LinkBermuda Other Than for Cause.    We may suspend Your right and license to use any or all Services and any associated LinkBermuda Information (defined in Section 6.1), or terminate this TOS in its entirety, for any reason, at Our discretion at any time by providing You thirty (30) days advance notice in accordance with the notice provisions set forth in Section 14.  If You are granted a free trial period Your account will be automatically terminated at the end of Your free trial period.

3.4     Termination or Suspension by LinkBermuda for Cause.  We may suspend Your right and license to use the Service, or terminate this TOS in its entirety, for cause as set forth below:

(A)     (i) Immediately if You attempt a denial of service attack; (ii) You seek to hack or break any security mechanism; (iii) We otherwise determine in Our sole discretion that Your use of the Services or the LinkBermuda Information poses a security or service risk that may subject Us or any third party to liability, damages or danger; (iv) You otherwise use the Services in a way that disrupts or threatens the Services; (v) You are in default of Your payment obligations hereunder; (vi) We determine, in Our sole discretion, there is evidence of fraud with respect to Your account; (vii) You use any of the LinkBermuda Information or Marks (defined in Section 6.2) other than as expressly permitted herein; (viii) We receive notice or We otherwise determine, in Our sole discretion, that You may be using the Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (ix) We determine, in Our sole discretion, that Our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (x) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.

(B)     Ten (10) days following notice to You in accordance with the notice provisions set forth in Section 15 if You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to Us is invalid or charges are refused for such payment mechanism, and You fail to cure such payment obligation default or correct such payment mechanism problem within such ten (10) day period.

(C)     Five (5) days following notice to You in accordance with the notice provisions set forth in Section 15 if You breach any other provision of this TOS and fail, as determined by Us, in Our sole discretion, to cure such breach within such five (5) day period.

 

3.5     Effect of Suspension or Termination.

3.5.1  Suspension.  Upon Our suspension of Your use of any Services, in whole or in part, for any reason, (i) fees will continue to accrue for any Services that are still in use by You, notwithstanding the suspension (including Your continued storage of data on the  Services during the period of suspension); (ii) You remain liable for all fees, charges and any other obligations You have incurred through the date of suspension with respect to the Services; and (iii) all of Your rights with respect to the applicable Services shall be terminated during the period of the suspension.

3.5.2  Termination.  Upon termination of this TOS for any reason: (i) You remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to the Services; (ii) all of Your rights under this TOS shall immediately terminate;  (iii) You shall immediately return, or if instructed by Us, destroy all LinkBermuda Confidential Information (defined in Section 10) and any LinkBermuda Information then in Your possession; and (iv) if applicable, You shall grant Us (or our 3rd party vendor) access to Your location during normal working hours to remove any Link Equipment (or equipment provided by a 3rd party vendor on behalf of LinkBermuda) upon reasonable notice from Us.

3.6     Survival.  In the event this TOS is terminated for any reason, Sections 3.5, 3.6, 3.7, 4.2, 6, 8 (with respect to payments that are accrued but unpaid at the time of termination), and Sections 9 through 16 will survive any such termination.

3.7     Data Preservation in the Event of Suspension or Termination.

3.7.1  Suspension Other Than for Cause.  In the event of a suspension by Us of Your access to any Services for any reason other than a for cause under Section 3.4, during the period of suspension, (i) We will not take any action to intentionally erase any of Your data stored on the Services; and (ii) applicable Service data storage charges will continue to accrue.

3.7.2  Termination Other Than for Cause.  In the event of any termination by Us of any Service or any set of Services, or termination of this TOS in its entirety, (other than for cause under Section 3.4), We will take immediate action to erase any of Your data stored on the Services upon the effective date of termination.

3.7.3  Other Suspension or Termination.  Except as provided in Sections 3.7.1 above, We shall have no obligation to continue to store Your data during any period of suspension or termination or to permit You to retrieve the same.

 

4.      Authorization and License to Use the Services.

You shall use the Services only for purposes that are legal and in accordance with this TOS, including without limitation the AUP.   Subject to Your acceptance of and compliance with this TOS and with the payment requirements for the Services, We hereby grant You a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under Our intellectual property rights, to access and use the Services, solely in accordance with this TOS.  In connection with Your use of the Services, solely as a convenience for You and solely at Your election, We may make available to You the use of certain third party software and/or services (“Third Party Software and Services”).  We are not liable or responsible for claims, damages, losses or any other complaints arising out of or related to Your use of such Third Party Software and Services.  Your use of any Third Party Software and Services are subject to the terms and conditions directly between You and the applicable third party vendor and at Your own risk.  You hereby acknowledge that no purchase or license of any Third Party Software and Services is required to use the Services. 

4.1     Permitted Uses Generally.

4.1.1  You may write a software application or Web site (“Application”) that interfaces with the Services.  You acknowledge that We may change, deprecate or republish APIs (as defined in Section 7.1 below) for any Service or feature of a Service from time to time, and that it is Your responsibility to ensure that calls You make to any Service are compatible with then-current APIs for the Service.  You further acknowledge that We may change or remove features or functionality of the Services at any time.

4.1.2  You may make network calls or requests to the Services at any time that the Services are available pursuant to the terms of the AUP.  If You build and release an Application, each installed copy of Your Application may not exceed the maximum file size or maximum calls per second limit (if any) set forth in the AUP (or, in the event the AUP for a Service does not indicate a maximum file size, greater than 40kb).

4.2.    Restricted Uses Generally.

4.2.1  You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services.

4.2.2  You may not compile or use the LinkBermuda Information or any other information obtained through the Services for the purpose of direct marketing, spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate any applicable anti-spamming laws or regulations.

4.2.3  You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Services or any LinkBermuda Information.

4.3     Accounts and Credentials.  You may only create one account per email address.  LinkBermuda accounts are associated with one user name and password, and an Encryption Key (“Credentials”), which are used to access the Services.  When You complete the account creation process, Your user name and password will become Your unique account identifiers (“Account Identifiers”), and You may generate Credentials to Your account.  Account Identifiers (i) identify Your account and (ii) allow You to make requests to LinkBermuda with the Credentials.  Your Account Identifiers are immutable and will always uniquely identify Your Link account.  The Credentials are unique to Your account.  The Credentials are for Your personal use only, and You may not sell, transfer, sublicense or otherwise disclose Your private key to any other party.  You may use Your Credentials to open requests with LinkBermuda and therefore Your Credentials are not secret.  However, You are responsible for maintaining the secrecy and security of Your API Credentials.  You are fully responsible for all activities that occur under Your Account Identifiers, regardless of whether such activities are undertaken by You or a third party.  Therefore, You should contact Us immediately if You believe a third party may be using Your Credentials, or if Your Credentials are otherwise lost or stolen.  You are responsible for maintaining up-to-date and accurate information (including contact information) for Your Link account.  We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, Your content (defined in Section 11.2), Your Applications, or other data which You submit or use in connection with Your account or the Services.

4.4     Monitoring Your Use of the Services.  You agree to provide information and/or other materials related to Your Applications as reasonably requested by Us to verify Your compliance with this TOS.  You further acknowledge and agree that, with respect to online Applications We may monitor the external interfaces of Your Application for the purpose of verifying Your compliance with this TOS.  You may not block or otherwise interfere with such monitoring.  We have the right to use any means available to defeat any methods used on Your Application to block or interfere with Our monitoring); and with respect to client-side applications, You agree to furnish a copy of Your Application upon request for the purpose of verifying Your compliance with this TOS.

 

5.      Link Equipment

5.1     You may request that We provide (either directly or through an affiliate or third party supplier) certain equipment at Your location in connection with Your use of a Link Cloud Service (“Link Equipment”).  In such event and in consideration of Your payment of all applicable fees, We shall provide the applicable Link Equipment subject to the following terms except as otherwise expressly agreed in writing by the parties:

5.1.1   We shall provide You any information necessary for You to prepare Your location reasonably in advance of Link Equipment delivery and installation.  You shall be responsible for any authorizations needed by Us to deliver, install and maintain the Link Equipment at Your location.  We may request You to sign a delivery certificate in connection with the delivery of any Link Equipment to You.  You shall be responsible for providing Us reasonable assistance and facilities to install the Link Equipment and suitable accommodation, assistance, facilities, and environmental conditions as mutually agreed in advance by the parties for the housing of Link Equipment and all necessary electrical and other installations and fittings.  If required by Us, You shall procure at Your location a secure primary electricity power supply of a suitable type for the installation, operation and maintenance of the Link Equipment at suitable points and with suitable connections as specified by Us.  If You request the Link Cloud Service to continue uninterrupted in the event of a primary power supply failure, You shall provide back-up power with sufficient capacity to conform to the stand-by requirements specified by Us.

5.1.2   You shall be responsible at all times for the safe custody and use of the Link Equipment upon delivery and installation at Your location and in particular (but without limitation to the generality of the foregoing) You agree that with respect to such Link Equipment You shall: (a) house, keep and use it at the location at which it is installed by Us in accordance with Our reasonable written instructions (email acceptable) as may be provided to You from time to time; (b) not add to, modify, repair or attempt to repair or service, or in any way interfere with, it; (c) not cause any attachments to be fitted to the Link Equipment other than those approved for connection by Us; (d) not do anything nor allow to subsist any circumstance, matter or thing which is likely to damage the Link Equipment or detract from or impair its performance or operation; and (e) permit Us to inspect or test the Link Equipment remotely or otherwise at such times as may be agreed between Us, such agreement not to be unreasonably withheld or delayed.

5.1.3   All risk of loss for Link Equipment shall pass to You upon its delivery to Your location.  You shall: (a) be responsible for the Link Equipment while it is in Your custody and shall be liable to Us for any loss or damage to the Link Equipment (unless caused by Our negligence), and You shall notify Us immediately of any loss or damage; (b) not permit or suffer any attachment, execution or distress to be levied or used against the Link Equipment nor permit or suffer the Link Equipment to be seized under or affected by any distress, execution or other legal process; and (c) not attempt to let, sell, charge or otherwise deal with the Link Equipment in a manner prejudicial to Our rights as owner of such equipment.

5.1.4   You shall cooperate with Us and grant Us immediate access to the Link Equipment upon Our reasonable request.  We will use all reasonable efforts to conduct work on the Link Equipment on Business Days between the hours of 8:30 a.m. and 5 p.m., but may require You to provide timely access based on a previously agreed procedure at other times. If We are unable to access the Link Equipment in a timely manner during a fault scenario, any associated outage time (until access is facilitated) will not count to any applicable SLA tied to the Link equipment at Your site.  We shall comply with Your written (email acceptable) security, health and safety rules while working at Your location.

5.1.5   We may modify, change, add to or replace the Link Equipment (or any part thereof) provided that any such action is carried out at Our sole expense and is subject to any applicable Service Level Agreement and does not otherwise materially detract from, reduce or impair overall the applicable Link Cloud Service performance.

5.1.6   Title to the Link Equipment shall be retained by Us at all times.  You shall not permit any liens or encumbrances to be placed upon Link Equipment, and We shall have the right to take any and all action necessary (including retaking possession of Link Equipment from Your location) to protect Our ownership interest in the Link Equipment.  You shall not remove, or tamper with any identification mark(s) affixed to the Link Equipment or to any part thereof showing such ownership.  On all occasions when the ownership of the Link Equipment is relevant, You shall make clear to third parties that all Link Equipment is Our property.

5.1.7   We reserve the right to assess an additional charge if You (a) prevent or delay scheduled maintenance services from being performed, or (b) fail to comply with the terms of this TOS and as a result We incur additional out-of-pocket costs to protect or preserve the Link Equipment.

 

6.      Acceptable Use Policy (AUP).

6.1     Provided that You comply with the terms of this TOS and Our policies and procedures for the use of the Services including without limitation Our AUP Policy and Privacy Policy, You may use the Services to store, retrieve and serve software applications, data and/or content owned, licensed or lawfully obtained by You.  You acknowledge that neither LinkBermuda nor its vendors are responsible in any manner, and You are solely responsible, for Your content.  While We may track information regarding Your use of the Services, We will not sell or license Your content, and will not disclose Your content except as We may determine to be necessary or desirable to comply with this TOS, the request of a governmental or regulatory body, subpoenas or court orders, or for other legal purposes. Our AUP current AUP is found at http://www.LinkBermuda.com/cloudAUP.aspx

6.2     You are personally responsible for all Applications running on and with traffic originating from the instances You initiate within the Services.  As such, You should protect Your authentication keys and security credentials.  Actions taken using Your credentials shall be deemed to be actions taken by You.

6.3     Email.  Electronic communications must adhere to all applicable laws.  Without limiting the foregoing, the following are strictly prohibited:  Sending of Spam/Unsolicited email, including but not limited to:

·       Pyramid schemes; Chain letters;

·       Sending any mail in contravention of applicable laws and regulations; and

·       Forgery:  Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.

6.4     Network.  You may make network connections from Services hosted servers to other hosts only with the permission and authorization of the destination hosts and networks.  Examples of unacceptable network traffic include but are not limited to:

·       Unauthorized probes and port scans for vulnerabilities;

·       Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any systems;

·       Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled;

·       Unauthorized network monitoring or packet capture;

·       Forged or non-standard protocol headers, such as altering source addresses, etc.;

·       Flooding;

·       Denial of Service (DoS) of any kind; and

You may not operate network services such as:

·       Open proxies;

·       Open mail relays; or

·       Open, recursive domain name servers.

6.5     The Services servers are hosted in and are subject to all applicable laws of Bermuda.  You are responsible for maintaining licenses and adhering to the license terms of any software You run.  You are responsible for compliance with the applicable local laws in which You use the Services.  Certain services are prohibited, and You may not operate a site or service that violates the AUP.

 

7.         License to Use LinkBermuda Information.

7.1        LinkBermuda Information.  We may make available to You, for Your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (the “LinkBermuda Information”).  Subject to Your acceptance of this TOS, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for Your right to use the subject Services, We hereby grant to You, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term, under Our intellectual property or proprietary rights in the LinkBermuda Information, only to install, copy and use the LinkBermuda Information solely in connection with and as necessary for Your use of such Services and solely to the extent in compliance with all the terms and conditions of this TOS.  If You are a Reseller purchasing Services from Us under a Value Added Reseller Agreement then the license grant terms of that agreement shall govern the scope of Your license to use LinkBermuda Information.  The LinkBermuda Information may include, without limitation:

·       Proprietary application programming interfaces (“APIs”); Developer tools for use in connection with the APIs;

·       Articles and documentation for use in connection with the use and implementation of the APIs (collectively, “Documentation”);

·       Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and other technology;

·       Textual materials made available as part of the Service (“Text Materials”);

·       Other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video (with the Text Materials, collectively, “LinkBermuda Content”); and 

·       Sample source code which We may make available from time to time for use in connection with the Services (“Sample Source Code”) and libraries which We may make available from time to time for use in connection with the Services (“Libraries”) will be made available to You under separate license that accompanies each Sample Source Code or Library and the term “LinkBermuda Information,” as used herein, specifically excludes any Sample Source Code or Libraries made available to You under separate license.

Except as may be expressly authorized under this TOS:

(A)  You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in or accessed via the LinkBermuda Information.

(B)  You may not, and may not attempt to, reverse engineer, disassemble, or decompile the LinkBermuda Information or the Services or apply any other process or procedure to derive the source code of any software included in or accessed via the LinkBermuda Information.

(C)  You may edit Text Materials only by deleting text from and reducing the length of the Text Materials and only if, in doing so, You do not materially alter the meaning of the Text Materials or cause the Text Materials to become factually incorrect or misleading.  You may not add additional information to the Text Materials. You hereby irrevocably assign to Us any and all intellectual property or proprietary rights in such edited Text Material.

7.2     Restrictions with Respect to Use of Marks.  Your use of any trademarks, service marks, service or trade names, logos, and other designations of LinkBermuda and its affiliates or licensors hereinafter “Marks”, shall strictly comply with the following provisions.  You may use the Marks in conjunction with the display of the LinkBermuda Content and for the purpose of indicating that Your Application was created using the Services.  You may use the Marks only in the form in which We make them available to You and not in any manner that disparages LinkBermuda, its affiliates or its licensors, or that otherwise dilutes any Mark.  Other than Your limited right to use the Marks as provided in this TOS, We and Our licensors retain all right, title, and interest in and to the Marks.  You will not at any time now or in the future challenge or assist others to challenge the validity of the Marks, or attempt to register confusingly similar trademarks, trade names, service marks or logos.  You agree to follow the LinkBermuda trademark guidelines as those guidelines may change from time to time.  The trademark guidelines are incorporated herein by reference.  You must immediately discontinue use of any Mark as specified by Us at any time in writing.  We may modify any Marks provided to You at any time, and upon notice You will use only the modified Marks and not the old Marks.  Other than as specified in this TOS, You may not use any trademark, service mark, trade name or other business identifier of LinkBermuda or its affiliates unless You obtain LinkBermuda’s or its affiliates’ prior written consent.  The foregoing prohibition includes the use of “LinkBermuda,” any other trademark of LinkBermuda or its affiliates, or variations or  misspellings of any  of them, in the name of an Application or in a URL to the left of the top-level domain name (e.g., ”.com”, ”.net”, etc.)—for example, a URL such as “LinkBermuda.mydomain.com” are expressly prohibited.  Any use You make of the Marks shall inure to Our benefit and You hereby irrevocably assign to Us all right, title and interest in the same.  In addition, You agree not to misrepresent or embellish the relationship between Us and You, for example by implying that We support, sponsor, endorse, or contribute money to You or Your business endeavors.

7.3     Nonexclusive Rights.  The rights granted by Us in this TOS with respect to the LinkBermuda Information, the Marks and the Services are nonexclusive, and LinkBermuda reserves the right to: (i) itself act as a developer of products or services related to any of the products that You may develop in connection with the LinkBermuda Information or via Your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with LinkBermuda’s Applications or Your Application(s).

 

8.      Downtime and Service Suspensions; Security.

8.1     Downtime and Service Suspensions.  In addition to Our rights to terminate or suspend Services to You as described in Section 3, You acknowledge that: (i) Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of  any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) We shall also be entitled, without any liability to You, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit Us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that We determine, in Our sole discretion, may create a risk to the applicable Service, to You or to any of Our other customers if the Services were not suspended; or (c) in the event that We determine that any Service is prohibited  by law or We otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”).  Without limitation to Section 12.5, We shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Suspension.  To the extent possible, We will provide You email notice of any Service Suspension in accordance with the notice provisions set forth in Section 15 and to post updates on the LinkBermuda Website regarding resumption of Services following any such suspension, but shall have no liability for the manner in which We may do so or if We fail to do so.

8.2     Security.  Without limitation to Section 4.3 and Section 12.5, You acknowledge that You bear sole responsibility for adequate security, protection, integrity and backup of Your content, Applications and Backup Data sources.  It is recommended that, where available and appropriate, You endeavor to (a) use encryption technology to protect Your content from unauthorized access, (b) routinely archive Your content, and (c) keep Your Applications or any software that You use or run with Our Services current with the latest security patches or updates.  We will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your content, Applications or Backup Data sources.

 

9.      Service Billing, Payments, Refunds, and Chargebacks.

9.1     Definitions:  The following capitalized terms shall have the meaning set forth below.

Resource” means any servers, storage, subscription software, bandwidth, computing, networking IP addresses, and Internet services.

In Use” or “Powered Off” means the deployment or use of any Resource, including but not limited to servers, system storage, external storage, bandwidth, public IP addresses, Internet services, or software subscription.

Powered On” means any server that is currently running in the Service which You have enabled by placing a check in the box labeled “Power server on when created” or powered on by selecting the “Power On” button.

Peak Use” means the highest measured total gigabytes of external storage deployed to a given server at any given time in a Billing Cycle, as defined below.

Billing Cycle” is a calendar month commencing on the first day of the calendar month at 00:00:00 Coordinated Universal Time (“UTC”) through the last day in that calendar month ending at 23:59:59 UTC.

9.2     Pricing and Payment for Services.  Current Link Cloud Service Pricing may be found at http://www.LinkBermuda.com/CloudPricing.aspx.  Individual Service pricing details are described in the applicable Service addendum.  Customer agrees to pay for all Link Cloud Service usage fees calculated during a given Billing Cycle using the payment method established during registration for the Services.  Payment for all usage fees during a given Billing Cycle will be automatically charged to Customer’s payment method within ten (10) business days following the completion of each Billing Cycle or as otherwise stated herein.  Any such payment shall be subject to Our general accounts receivable policies as may be amended from time to time.  All amounts payable by Customer under this Agreement will be made without setoff or counterclaim and without deduction or withholding.  If any deduction or withholding is required by applicable law, You shall notify Us and shall pay such additional amounts to Us as necessary to ensure that the net amount that We receive, after such deduction and withholding, equals the amount We would have received if no such deduction or withholding had been required. Additionally, You shall provide Us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority. 

9.3     Chargeback Policy.  If Customer attempts to dispute or deny a valid charge for Services rendered a suspension will be placed on the Services.  We will remove the suspension in the event the dispute is resolved or appropriate payments have been received.  If the dispute or denial of payment has not been resolved within thirty (30) days from of the date of the violation You will be subject to the termination provisions stated in Section 3.5 and subject to Our general accounts receivable policies which may be amended from time to time.

9.4     Refund Policy.  Customer understands that LinkBermuda bills for actual Resource usage fees in the month after the Resources have been used by the Customer.  In addition, You understand the LinkBermuda Service provides You with an accurate summary of all Resource usage during the present Billing Cycle.  As such, any payments processed are for Services already rendered and not subject to a refund.  However, in the event Customer determines there is an error in the summary of Resources usage or the fees charged for the Resources used, You may submit a billing dispute in writing to LinkBermuda.  In order for billing disputes to be reviewed the dispute must be received no later than thirty (30) days from the date the error took place.  LinkBermuda will review the dispute and make a determination whether or not there was a valid error with the system computing the usage or the usage fees.  If the dispute is validated LinkBermuda will credit the validated refund amount back to the payment mechanism associated with Customer’s account.  LinkBermuda’s records and data will be the sole basis for all refund credits.  In the event Customer is not current in its payment obligations under this TOS, refund credits will accrue, but will not be issued until Customer becomes current in its payment obligations.  Billing disputes should be submitted to LinkBermuda at the Section 15.1.2 notice address.

9.5.    Minimum Monthly Charge.  Customer shall be billed a minimum amount of $10.00 standby charge for LinkBermuda Service during any Billing Cycle for the Term of this TOS regardless of the amount of billable resources In Use.

9.6     Non-Payment.  You agree that We may suspend Your access to any Service if at any time You have not paid all fees that You owe to Us.  In the event We are unable to collect the fees You owe us, We may take any other steps We deem necessary to collect such fees from You, and You will be responsible for all costs and expenses incurred by Us in connection with such collection activity, including reasonable collection fees, court costs and attorneys’ fees.  Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less.

 

10.    Confidentiality.

10.1   Use and Disclosure.  You shall not disclose LinkBermuda Confidential Information during the Term or at any time during the two (2) year period following the end of the Term.  As used in this TOS, “LinkBermuda Confidential Information” means all nonpublic information disclosed by Us, Our business partners or Our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential.  LinkBermuda Confidential Information includes, without limitation, (i) nonpublic information relating to Our or Our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of Our so called trial products that You obtain as a result of Your participation in trial test), (ii) third-party information that We are obligated to  keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between You and Us. Confidential Information does not include any information described in Section 10.2 or any information that You are required to disclose by law.

10.2   Excluded Information.  You shall not have any confidentiality obligation to Us under Section10.1 with respect to any information provided or made available by Us hereunder, and We shall not have any confidentiality or non-use obligation to You hereunder with respect to any information, software application, data or content provided or made available by You hereunder that: (i) is or becomes publicly available without breach of this TOS; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by the receiving party.

10.3   Non-Disclosure Agreement.  If We are parties to a separate non-disclosure agreement (“Non-Disclosure Agreement”) and there is a conflict between the terms of the Separate NDA and the terms of this Section 10, the terms of the separate Non-Disclosure Agreement shall control.

 

11.    Intellectual Property.

11.1   Our Services and the LinkBermuda Information.  Other than the limited use and access rights and licenses expressly set forth in this TOS, We reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the LinkBermuda Information; (iii) the Marks; and (iv) any other technology and software that We provide or use to provide the Services and the LinkBermuda Information, including Link Equipment.  You do not, by virtue of this TOS or otherwise, acquire any ownership interest or rights in the Services, the LinkBermuda Information, the Marks, or other technology and software (including third party technology and software), except for the limited use and access rights described in this TOS.

11.2   Your Application(s), Data and Content.  Other than the rights and interests expressly set forth in this TOS, and excluding LinkBermuda Information and works derived from LinkBermuda Information, You reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) content and data You may send to Us or use as part of Your use of any Services which is designed by Us to permit You to send content or data to use; and (ii) Your Applications.

11.3   Feedback.  In the event You elect, in connection with any of the Services, to communicate to Us suggestions for improvements to the Services, including discussions on the community message boards, the LinkBermuda Information or the Marks (collectively, “Feedback”), We shall own all right, title, and interest in and to the same, even if You have designated the Feedback as confidential, and We shall be entitled to use the Feedback without restriction.  You hereby irrevocably assign all right, title and interest in and to the Feedback to Us and agree to provide Us such assistance as We may require to document, perfect, and maintain Our rights to the Feedback.

11.4   Non-Assertion.  During and after the Term of this TOS, with respect to any of the Services that You elect to use, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against Us or any of Our customers, end users, vendors, business partners, licensors, sub licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.

 

12.    Representations and Warranties; Disclaimers; Limitation of Liability.

12.1   Use of the Services.  You represent and warrant that You will not use the Services, LinkBermuda Information, Link Equipment and/or Your Application and Your content: (i) in a manner that infringes, violates or misappropriates any rights of Us or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.

12.2   Applications and Content.  You represent and warrant that: (i) You are solely responsible for the development, operation, and maintenance of Your Application and for Your content, including without limitation, the accuracy, security, appropriateness and completeness of Your content and all product-related materials and descriptions; (ii) You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Application and Your content; (iii) neither Your Application nor Your content (a) violates, misappropriates or infringes any rights of Us or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) neither Your Application nor Your content contains any harmful components; and (v) to the extent to which You use any of the Marks, You will conduct Your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of LinkBermuda.

12.3   Third Party Content and Other Websites.  Content from other Users, advertisers, and other third parties may be made available to You through Our website and/or Our Services.  Because We do not control such content, You agree that We are not responsible for any such content.  We do not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and We assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other users, advertisers, and other third parties or violation of any third party rights related to such content.  Our website and Our Services may contain links to websites not operated by Us.  We are not responsible for the content, products, materials, or practices (including privacy practices) of such websites.  You understand that by using Our website and/or Our Services You may be exposed to third-party websites that You find offensive, indecent or otherwise objectionable.  We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of third party websites, products or BaaS Cloud Services accessible by hyperlink or otherwise from Our website or Our Services.  We provide these links for Your convenience only and We do not control such websites.  Our inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators.  It is Your responsibility to review the privacy policies and terms of use of any other website You visit.  You agree that in no event will We be liable to You in connection with any websites, content, products, materials, or practices of any third party, including other customers or users.

12.4   Public Software and Feedback.  You represent and warrant that You will not use, and will not authorize any third party to use, any Public Software in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any LinkBermuda Information or Services be (i) disclosed or distributed in source code form, (ii) made available free of charge to recipients, or (iii) modifiable without restriction by recipients.  With respect to any Feedback, You represent and warrant that such Feedback, in whole or in part, contributed by or through You, (i) contains no third party software or any software that may be considered Public Software and (ii) does not violate, misappropriate or infringe any intellectual property rights of any  third party.  “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.

12.5   Authorization and Account Information.  You represent and warrant that: (i) the information You provide in connection with Your registration for the Services is accurate and complete; (ii) if You are registering  for the Services as an individual, that You are at least 18 years of age and have the legal capacity to enter into this TOS; and (iii) if You are registering for the Services as an entity or organization, (a) You are duly authorized to do business in the country or countries where You operate, (b) the individual signing this TOS and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Your entity, and (c) Your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind You to this TOS and all transactions conducted under Your account.

12.6   Disclaimer of Warranties.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE LINK CLOUD SERVICES IS AT YOUR SOLE RISK.  LINKBERMUDA INFORMATION, LINK EQUIPMENT, THE MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR AFFILIATES AND LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “CLOUD SERVICE OFFERINGS”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  ANY USE OF THE CLOUD SERVICE OFFERINGS IS DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM USING THE CLOUD SERVICE OFFERINGS.  WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS.  LINKBERMUDA AND OUR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.  LINKBERMUDA AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE CLOUD SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.  WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES.  NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.

12.7   Your Application(s) are Your Responsibility.  In addition to the foregoing, We specifically disclaim all liability, and You shall be solely responsible for the development, operation and maintenance of Your Application (including any bundled application) and for all materials that appear on or within Your Application and You agree that You shall, without limitation, be solely responsible for the following:

(A)     the technical operation of Your Application and all related equipment;

(B)     the accuracy and appropriateness of any materials posted on or within Your Application (including, among other things, any product-related materials);

(C)     ensuring that any materials posted on Your site or within Your Application are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;

(D)     ensuring that Your Application accurately and adequately discloses, either through a privacy policy or otherwise, how You collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers;

(E)     any of Your users’ or customers’ claims relating to Your Application or any Services utilized in connection with Your Application; and

(F)     Your election to utilize APIs, sample code and libraries that may be made available on the LinkBermuda Website, many of which may be provided by third parties and many of which We have not tested or screened in any way.

12.8   Links.  The LinkBermuda Website and/or the Services may contain links to websites that are not under Our control (“Third Party Sites”).  We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site.  We provide these links to You as a convenience and the inclusion of any such links does not constitute or imply Our endorsement or validation of any Third Party Site.

12.9   Limitation of Liability.  NEITHER LINKBERMUDA NOR ANY OF OUR AFFILIATES OR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE WHATSOVER, OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICE ARISING OUT OF OR IN ANY WAY RELATED TO THIS TOS OR THE LINK CLOUD SERVICES.  SUCH LIMITATION INCLUDES BUT IS NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLE FORESEEN) IN CONNECTION WITH THIS TOS OR LINK CLOUD SERVICES, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES OR LINK EQUIPMENT; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT.  IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS TOS SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY UNDER THIS TOS.  LINKBERMUDA SHALL HAVE NO LIABILITY FOR ANY CUSTOMER DATA OR THIRD PARTY SOFTWARE.

 

13.    Indemnification.

You agree to hold harmless and indemnify LinkBermuda and its affiliates and licensors, and their respective employees, officers, directors, agents and representatives, from and against any and third party claim arising from or in any way related to Your Application, Your data, Your content, Your use of the Link Cloud Services or Link Equipment, or violation of this TOS, AUP, PP or any other action connected with Your use of the Services or Link Equipment, including any liability or expense arising from all claims, losses, damages (actual or consequential), suits, judgments, settlements, litigation costs and reasonable attorneys’ fees of every kind and nature.  In such a case, LinkBermuda will promptly provide You written notice of such claim, suit or action and reasonable assistance at Your cost. 

 

14.    Compliance with the Law; Disputes.

14.1   Compliance.  You are solely responsible for compliance relating to the manner in which You choose to use the Link Cloud Services including Your transfer, processing and provisioning of Your data, content or software.  You agree to adhere to all applicable export laws and regulations in the jurisdiction(s) in which You are operating and/or using the Services.  You further shall not do anything that would cause LinkBermuda to be in breach of any applicable export laws and regulations.

14.2   Regulatory.  LinkBermuda reserves the right to disclose information relating to Your Services if required to do so by law, regulation, or governmental request, or in the good faith belief that such action is necessary to: (a) conform to the edicts of the law or comply with legal process served on LinkBermuda or its affiliates; (b) protect and defend the rights or property of LinkBermuda or affiliates; or (c) act under exigent circumstances to protect the personal safety of users of Services or members of the public.

14.3   Disputes.  Notwithstanding anything to the contrary, We may seek injunctive or other relief in any court of competent jurisdiction for any actual or alleged infringement of LinkBermuda’s or any third party’s intellectual property and/or proprietary rights.  Any dispute relating in any way to Your visit to the LinkBermuda Website or to Link Cloud Services sold or distributed by LinkBermuda or its affiliates shall be adjudicated in Bermuda, and You consent to exclusive jurisdiction and venue in such courts.  You further acknowledge that Our rights in the LinkBermuda Information are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.  We will be entitled all reasonable attorney fees associated with enforcement of Our rights under this TOS.

14.4   Governing Law.  These Terms of Service and the relationship between You and Us relating to the delivery and use of Link Cloud Services shall be governed by the laws of Bermuda without regard to conflicts of laws provisions.   

 

15.    Notice.

15.1   Notice To You.  Notices that affect Our customers generally (e.g., notices of amended TOS, AUPs, updated fees, etc.) will be posted on the LinkBermuda Website.  Notices by LinkBermuda given to You or Your account specifically under this TOS may be given by sending notice to Your email address provided to Us in Your registration for the Services or in any updated email address You provide to Us in accordance with standard account information update procedures We may provide from time to time.  It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon Our sending of the email, whether or not You actually receive the email.

15.2   Notice To Us.  Notices by You to LinkBermuda under this TOS and for questions regarding this TOS or the Services, must be given by overnight courier, personal delivery or registered or certified mail to LinkBermuda Ltd., Attn: TOS, General Manager, 26 Victoria Street, Hamilton HM 12, Bermuda.

 

16.    Service Level Agreements (“SLA”)

The applicable Link Cloud Service SLA shall be Your sole and exclusive remedy for any unavailability or non-performance of such Service.  The applicable SLA for Your Link Cloud Service can be found at: http://LinkBermuda.com/Legal.aspx.

 

17.    Miscellaneous Provisions

17.1   Third Party Activities.  If You authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this TOS, You shall be deemed to have taken the action Yourself.

17.2   Severability.  If any portion of this TOS is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this TOS will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language.  If such construction is not possible, the provision will be severed from this TOS, and the rest of the TOS shall remain in full force and effect.

17.3   Waivers.  The failure of either party at any time to enforce any provision of this TOS shall in no way be construed to be a present or future waiver of such provision nor in any way affect such party’s right to enforce such provision thereafter.  All waivers by either party must be in writing to be effective.

17.4   Assignment; Performance.  We may assign this TOS to an affiliate of LinkBermuda or pursuant to a merger, acquisition, sale of all or substantially all assets, corporate reorganization or other similar transaction.  This TOS will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.  You expressly agree and acknowledge that We may procure any portion of the Service from qualified affiliates and/or third party subcontractors provided that We be and remain liable for all of the obligations ascribed to it under this TOS.

17.5   Entire Agreement.  This TOS incorporates by reference all policies and guidelines posted on the LinkBermuda Website, including the AUP, PP and SLA and constitutes the entire agreement between You and Us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representations understanding, agreement, or communication between You and Us, whether written or oral, regarding such subject matter.  No purchase order or similar document from You shall vary or add to these TOS.

17.6   No Endorsement.  You understand and acknowledge that We are not certifying nor endorsing, and have no obligation to certify or endorse, any of Your Applications or Your content.

17.7      Relationship.  The TOS does not create or imply any partnership, agency or joint venture between You and Us (or any of Our affiliates).